SZNAZ v Minister for Immigration
[2009] FMCA 237
•10 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNAZ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 237 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal need not find a case against an applicant in order to affirm the Ministerial delegate’s decision – alleged breach of s.424A not proved – allegation of bias by pre-judgment not proved. |
| Migration Act 1958, ss.65, 91R, 424A, 425 |
| Applicant: | SZNAZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3234 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 10 March 2009 |
| Date of Last Submission: | 10 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 10 March 2009 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Mr T. Reilly |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3234 of 2008
| SZNAZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where he claims he participated in the 1989 Tiananmen Square demonstrations and subsequently turned to Christianity in 2007. The applicant claims to fear persecution in China because of his religion and political opinions.
After his arrival in Australia on 8 April 2008, the applicant lodged an application for a protection visa. That application was refused by the Minister’s delegate on 14 July 2008. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 6 of the Tribunal’s decision (Court Book (“CB”) pages 92 – 94).
In support of his protection visa application the applicant claimed that he participated in the 4 July 1989 Tiananmen Square demonstrations and was subsequently detained in a labour reform camp for one year in 1989 to 1990. He also claimed that he was introduced to the Bible by a friend, which was a great consolation to him and in August 2007 he began to attend a house church. In January 2008 while attending the house church, the police arrived and arrested them. His wife secured his release by paying money and thereafter he was in hiding and in fear of the police. He also claimed that he was in a labour reform camp for one month in 2008.
The applicant appeared before the Tribunal on 5 November 2008 to give evidence and present arguments and he made the following additional claims:
a)he worked as a machine operator for 30 years until February 2008. When the Tribunal noted that in his protection visa application he had listed his profession as manager, the applicant stated that he worked his way up to the position of manager but was then demoted because of his political views;
b)because of his involvement in the 1989 Tiananmen Square demonstrations he was stigmatised, discriminated at work, demoted by managers and made to work harder for less pay than others;
c)he is opposed to the Communist government and its corrupt practices. A friend introduced him to the Bible after he lost the courage to live and he took up the practice of Christianity in August 2007;
d)when the Tribunal asked for more detail of the Christianity he practised, the applicant stated it was underground as he did not wish to go to a registered church as he had heard that they were controlled and manipulated by the government and do not put God first;
e)when asked to elaborate on the main beliefs of his Christian religion, the applicant stated that he believes in eternal life and to love God and all people on earth;
f)when asked about the underground church he attended, he stated that:
i)he met with the group once a week to read the Bible, sing hymns and pray in someone’s home;
ii)the group consisted of about ten people and was led by Mr L;
iii)the group had no name, nor any particular structure;
iv)it was founded in 2005; and
v)it was self contained and not connected to a wider group;
g)when asked about the particular beliefs of the group, the applicant stated that they believed in the Ten Commandments, not having strange gods and that eternal life is through Jesus Christ;
h)he fears returning to China because he has a political opinion different from that of the authorities and they would not tolerate his views. His thoughts and beliefs would be under attack in China;
i)apart from the 1989 demonstrations the applicant had not engaged in political activities as he had not had the chance to do so, but he talks to his colleagues;
j)he attended the St John’s Anglican Cathedral church in Parramatta and chose it because it was close to where he lives and he could walk there;
k)he did not know what “Anglican” referred to but did not believe it made any difference; and
l)he has never attended a registered church in China but was told by others that they are controlled by the government and therefore he would not attend one.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal found the applicant was not a credible witness on key aspects of his claims. He gave evidence which was often weak, unconvincing and which was at times evasive. In coming to this credibility finding, the Tribunal noted that:
i)the applicant’s oral evidence concerning his Christian beliefs and the underground church he claimed to belonged to lacked relevant detail;
ii)he did not readily or naturally explain his religious beliefs and he provided vague responses to questions seeking detail of his religious convictions, such as his statement that he believed in God, in Jesus Christ and the Ten Commandments; and
iii)he did not provide any meaningful detail to the Tribunal as to the nature of the underground church he claimed to have joined, stating that the group had no affiliation with a religious denomination, no particular name and was simply a Christian group. He did not elaborate on a particular structure or belief system of the group, other than that it consisted of ten people and was founded in 2005;
b)the Tribunal did not accept that the applicant was Christian or that he participated in an underground church. Nor did it accept that the applicant came to the adverse attention of the Chinese authorities or was detained by them by reason of his claimed religious association. Further, the Tribunal did not accept that the applicant faced harm on return to China on the basis of his religion;
c)although the Tribunal accepted that the applicant has attended St John’s Cathedral in Parramatta since his arrival in Australia, it noted that he was unaware of that cathedral’s denomination and that he chose to attend it because of its proximity to his home. In light of this and the unpersuasive nature of the applicant’s evidence as already set out in these reasons, the Tribunal was not satisfied that his religious activities in Australia were undertaken otherwise than for the purpose of strengthening his claim to be a refugee and therefore the Tribunal disregarded that conduct;
d)the Tribunal did not accept that the applicant engaged in or would engage in any expression of a particular political opinion were he to return to China, noting that it found his oral evidence on this issue vague and unconvincing, in particular he did not provide any specific details of political actions or expression of his views beyond conversations with colleagues;
e)nor did the Tribunal accept that the applicant participated in the 4 June 1989 Tiananmen Square demonstrations, as a consequence of which he was detained and discriminated against in his employment. In this regard the Tribunal observed that the applicant appeared to adjust his evidence to fit the question asked. Specifically, he first stated to the Tribunal that he had been employed as a machine operator for 30 years. When the Tribunal noted to him that he stated in his protection visa application that he was a manager, the applicant then stated that he was a machine operator, was promoted to be a manager and then was demoted back to a machine operator because of his political views; and
f)when the Tribunal put to the applicant at the hearing that it was having difficulty being persuaded by his oral evidence, although he stated that he was telling the truth, he did not attempt to elaborate or detail his claims such that the Tribunal might be otherwise persuaded.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1)I was not considered fairly by RRT. They did not provide credible reasons to my evidence. They did not weight my evidence. Also they did not give me chance to provide comments on their doubts by writing.
(2)I was not considered fair by RRT. If I didn’t provide evidence, they said it lacks evidence. If I provide the evidence, then they said I did that for sole purpose of strengthening my refugee claims. I was persecuted in China. RRT failed to assess my risk to go back to China.
Today the applicant raised additional matters, namely:
a)he did not think it was fair that the Tribunal drew a conclusion before the hearing started, it having said at the outset at the hearing that the applicant did not satisfy the definition of a refugee as set out in the Convention; and
b)he did not understand why the member did not believe him.
Turning first to the grounds pleaded in the application. As to the first of these grounds and the allegation that the Tribunal “did not provide credible reasons to [his] evidence”, two issues potentially arise. First, perhaps the applicant is saying that the Tribunal was required to have mounted a negative case or found a negative case against him before it proceeded to affirm the delegate’s decision. This is not so. It is the obligation of an applicant before the Tribunal to make out his allegations such that the Tribunal is satisfied that he or she meets the criteria for the grant of a protection visa. Section 65 of the Migration Act 1958 (“Act”) provides that if the Tribunal is so satisfied then certain consequences follow, but if the Tribunal is not satisfied, then it must affirm the delegate’s decision. For these reasons, it is not necessary for the Tribunal to have made out or to have found a negative case against the applicant in order that it can affirm a delegate’s decision.
Secondly as to that allegation, perhaps the applicant says that the Tribunal’s reasoning does not support its conclusion. This is also not so in this case. The finding reached by the Tribunal was a credibility finding based on its assessment of the applicant when he gave his evidence and the plausibility of the allegations which he made. It is to be noted that the applicant’s essential claims were not believed for the reasons given by the Tribunal and summarised earlier in these reasons. I find that the Tribunal’s reasons did adequately support the conclusion which it reached and thus, this aspect of the first ground pleaded in the application is not made out.
The second element of the first allegation is that the Tribunal “did not weight” the applicant’s evidence. This appears to be an allegation that the Tribunal did not give any or any proper consideration to the evidentiary material which the applicant had submitted to it. If the Tribunal ignores relevant material which may have a direct bearing on the decision it must reach and its exercise of power is affected as a result, then its decision will be affected by jurisdictional error. However, the rather thin case advanced by the applicant before the Tribunal was clearly given proper consideration, as a review of the Tribunal’s decision record discloses. I am satisfied that the Tribunal did give such consideration as was necessary to the matters raised by the applicant and consequently this element of the first ground pleaded in the application, is not made out.
The final aspect of the first pleaded allegation is that the applicant had not been given a “chance to provide comments on [the Tribunal’s] doubts by writing”. The reference to being denied an opportunity to provide a written response to the Tribunal’s doubts indicates that this is an allegation of failure by the Tribunal to observe the requirements of s.424A of the Act. That section relates to “information” as that term is understood by reference to the authorities which have considered it. Those authorities show that “information” is a concept which does not include “doubts”. “Doubts” are not “information”. For that reason, such doubts as the Tribunal might have had, or any other aspects of its thought processes, are not required to be disclosed to an applicant by virtue of s.424A of the Act. Consequently, no jurisdictional error has been disclosed by reason of this aspect of the first ground pleaded in the application.
The second ground pleaded in the application is basically a complaint that whatever the applicant did, he could not win: if he gave evidence, it was disregarded under s.91R(3) and if he failed to provide it, he was criticised for this. What the second pleaded ground fails to acknowledge was that it was the credibility of the evidence which was supplied, together with the lacunae in the applicant’s knowledge of matters important to his claim, which led the Tribunal to conclude that it was not satisfied that he met the criteria for a protection visa. I find that the second ground pleaded in the application does not disclose jurisdictional error on the Tribunal’s part.
Turning to the matters raised today, the first was, in essence, an allegation of pre-judgment on the part of the Tribunal. First, it should be noted that the applicant would not have been invited to a Tribunal hearing under s.425 of the Act if the Tribunal had been satisfied on the papers that he met the criteria for a protection visa. This reality is reflected by the Tribunal’s prefatory comments which are recorded in the transcript of the Tribunal hearing, which is exhibit A. What the Tribunal said at the outset was this:
I have a copy of the department’s decision refusing the grant of the visa. I have the application of [sic] review that you have made out to this Tribunal and I note that we wrote to you in August 2008 and invited you to the hearing today and we also in that letter invited you to provide us with any written submissions by 8 September and I note that you haven’t provided us with anything and on the information that I have before me, I am unable to be satisfied that you qualify for a protection visa. That is, on the information that you have provided so far, I am not satisfied that you are a refugee.
It’s for this reason that we’re having the hearing today, to give you the opportunity to make any further statements you’d like to make and to discuss your application with you. (at p.2)
The Tribunal then went on to explain what the Convention tests were and continued:
There are [sic] a number of criteria to be satisfied and as I said on the little bit of information before me from what you’ve provided, I am unable to be satisfied that you do meet the definition. So what I would like to do is ask you some questions and then give you the opportunity to make any further statements that you wish to make. So what I might do is start with just some general questions – ask you some general questions about yourself. (at p.3)
The Tribunal then went on to conduct an unexceptionable hearing, the transcript of which indicates a genuine attempt by the Tribunal to elicit the applicant’s allegations. It does not suggest pre-judgment on the Tribunal’s part.
What the Tribunal said at the outset and later during its hearing does not support an allegation of pre-judgment. Rather, the Tribunal stated the reason why there had to be a hearing and then proceeded through that hearing endeavouring to elicit from the applicant the details of his claims. I cannot conclude, having read the transcript of the Tribunal’s hearing, that the Tribunal entered into the exercise of its power having already decided on the outcome of the review. I therefore find that the allegation of pre-judgment is not made out.
As for the second ground pressed by the applicant today, this is, in substance, really an allegation that the Tribunal’s reasoning was either deficient or was not expressed. These issues have already been considered in these reasons in relation to the allegations pleaded in the application and this ground fails for the reasons already expressed in that connection.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 23 March 2009
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